Real Estate Photographer in Llano, TX

The US Court of Appeals for the Fifth Circuit on Friday reversed a lower court’s decision to return books that had been removed from the library system in Llano County, Texas.

Judge Kyle Duncan, who wrote the majority opinion for the case, reasoned that the plaintiffs have a right to receive information but that this right cannot compel the government to provide taxpayer-funded library books. Additionally, the court found that a library’s decisions are government speech and are not subject to free speech challenges under the First Amendment to the US Constitution.

The court reasoned on the first issue that if the right to receive information in this situation were found, then there would be stagnation in the library system, as people would always challenge the selection of books being purchased. Judge Duncan cited the Llano County panel that chose to remove the 17 books as disagreeing on nearly half of the books selected. Judge Duncan further noted that there is a lack of a standard for judges to apply when determining if a book should be removed, and that this is better left to the discretion of the library’s review.

As to the second issue of government speech through libraries, the court stated that expressive activity like book selection is engaged in all the time through the selection of newspaper stories, the curation of museum exhibitions, and the choosing of television programs. Judge Duncan said that by placing and removing certain books from library shelves, the government is saying, “We think these books are worth reading.”

The court rejected the extension of the public forum doctrine from the space of the library itself to the content that is placed on the library’s bookshelves, even as a limited public forum. A limited public forum is government-owned or operated property that the government has opened for expressive use by the public, but only to certain members of the public or only for certain purposes. The court stated: “Library shelves are not a community bulletin board: they are not ‘places’ set aside ‘for public expression of particular kinds or by particular groups.'”

Judge Duncan wrote: “Take a deep breath, everyone. No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend.” This case comes amidst a recent rise in challenges to the removal of books from schools and libraries and follows on the back of decades of defining what is considered “free speech” in public education settings.

The plaintiffs in this case were patrons of the county library system who believed that the removal of such books was are violation of their First Amendment unenumerated right to receive information.

Llano County argued that the books chosen for removal were done through a regular review system, called “Continuous Review, Evaluation, and Weeding” (CREW), which is common to nearly all libraries to make room for new materials. Llano County removed books that fell under their “Misleading, Ugly, Superseded, Trivial, Irrelevant, and Elsewhere” (MUSTIE) designation. Some of the 17 titles removed were: Caste: The Origins of Our Discontent by Isabel Wilkerson, Called Themselves the KKK: The Birth of an American Terrorist Group by Susan Campbell Bartoletti, Spinning by Tillie Walden, In the Night Kitchen by Maurice Sendak, and It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health by Robie Harris.

LLANO COUNTY, Texas — The Fifth Circuit Court of Appeals rules that Llano County's removal of books from a public library is conditional.

The ruling overturns a 30-year precedent barring the removal of library books for political reasons and could have sweeping ramifications on the definition of free speech and books.

Several people sued in April of 2022 after 17 books were pulled from shelves for what was considered obscene material.

The plaintiffs argued they had a First Amendment right to the information in those books.

The judge disagreed, saying it doesn't provide that guarantee, and instead, the library has something called Government Speech -- the right to curate its collection -- much like a museum.

He says that because people can find these books elsewhere, arguments that this is akin to book bans or book burning are exaggerated.

Laney Hawes with the Texas Freedom to Read Project disagrees.

"This could be the beginning of the end of true government control over what we are allowed to read, and then what is next?" Hawes said. "This is terrifying."

Now, the 8th Circuit Court of Appeals has ruled opposite to the Fifth Circuit, meaning the division between the Circuits could bring this case before the U.S. Supreme Court.

Legal experts say that in the meantime, this could lead to more pressure on public libraries to remove books.

"Now there's going to be a lot more pressure on library authorities because people who want to see books banned can say it is within your authority, so if you choose to do so, you're making a political decision rather than a sort of more legal decision."

Leila Little, the primary plaintiff, sent the following statement to CBS Austin on behalf of one of her attorneys, Katherine Chiarello of Botkin Chiarello Calaf:

We are continuing to consider the fractured opinion. It is very disappointing that, today, the Fifth Circuit has regressed from its long-standing protection of a citizen's right to receive information under the First Amendment and that it has created a circuit split by dramatically expanding the scope of the government speech doctrine. We are considering next steps.

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